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314 F.

3d 463

O CENTRO ESPIRITA BENEFICIENTE UNIAO DE


VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New
Mexico corporation on its
own behalf and on behalf of all of its members in the United
States; Jeffrey Bronfman, individually and as Vice-President of
UDV-USA; Daniel Tucker, individually and as Vice-President
of UDV-USA; Christina Barreto, individually and as Secretary
of UDV-USA; Fernando Barreto, individually and as Treasurer
of UDV-USA; Christine Berman, Mitchel Berman, Jussara de
Almeida Dias, also known as Jussara Almeida Dias, Patricia
Domingo, David Lenderts, David Martin, Maria Eugenia
Pelaez, Bryan Rea, Don St. John, Carmen Tucker, and Solar
Law, individually and as members of UDV-USA, PlaintiffsAppellees,
v.
John ASHCROFT, Attorney General of the United States; Asa
Hutchinson, Administrator of the United States Drug
Enforcement Administration; Paul H. O'Neill, Secretary of the
Department of Treasury of the United States; David C. Iglesias,
United States Attorney for the District of New Mexico; David
F. Fry, Resident Special Agent in Charge of the United States
Customs Service Office of Criminal Investigation in
Albuquerque, New Mexico; all in their official capacities,
Defendants-Appellants.
No. 02-2323.

United States Court of Appeals, Tenth Circuit.


December 12, 2002.

Michael Jay Singer and Matthew M. Collette, of Appellate Staff,


Washington, DC, for Defendants-Appellants.
Nancy Hollander and John W. Boyd, of Freedman, Boyd, Daniels,

Hollander, Goldberg & Cline P.A., Albuquerque, NM, for PlaintiffsAppellees.


Before KELLY and HARTZ, Circuit Judges.
ORDER
PAUL KELLY, JR., Circuit Judge.

This matter is before the court on the government's emergency motion for a
stay pending appeal, or alternatively an administrative stay pending
consideration of a stay pending appeal. Upon consideration thereof,

(1) The government seeks a stay of the district court's November 13, 2002,
preliminary injunction enjoining the government from enforcement of the
Controlled Substances Act ("CSA"), as it pertains to Plaintiffs' importation,
possession, and distribution of hoasca for religious ceremonies. Hoasca is a tealike mixture made from two Brazilian plants, one of which contains a
hallocinogenic controlled substance known as dimethyltryptamine ("DMT"), a
Schedule I controlled substance. The district court's preliminary injunction
incorporated various findings from its August 12, 2002, memorandum opinion
and order which rejected many of the Plaintiffs' claims but determined that
Plaintiffs were entitled to a preliminary injunction under the Religious Freedom
Restoration Act ("RFRA"), 42 U.S.C. 2000bb.

(2) We recently discussed the applicable standard for a stay pending appeal in
Homans v. City of Albuquerque, 264 F.3d 1240 (10th Cir.2001).

For us to consider a request for a stay or an injunction pending appeal, 10th Cir.
R. 8.1 requires the applicant to address the following: "(a) the likelihood of
success on appeal; (b) the threat of irreparable harm if the stay or injunction is
not granted; (c) the absence of harm to opposing parties if the stay or injunction
is granted; and (d) any risk of harm to the public interest." In ruling on such a
request, this court makes the same inquiry as it would when reviewing a district
court's grant or denial of a preliminary injunction. McClendon v. City of
Albuquerque, 100 F.3d 863, 868 n. 1 (10th Cir.1996).

Homans, 264 F.3d at 1243. When reviewing the district court's grant of
preliminary injunctive relief, we may set it aside for an abuse of discretion, an
error of law or clearly erroneous factual findings. See SCFC ILC, Inc. v. Visa
USA, Inc., 936 F.2d 1096, 1098-99 (10th Cir.1991). Because the injunction in

this case alters the status quo (enforcement of the Controlled Substances Act
("CSA") and compliance with the 1971 UN Convention on Psychotropic
Substances), the proponents of the injunction should have demonstrated to the
district court that the right to relief was "clear and unequivocal." Id.
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(3) Here, all parties agree that enforcement of the CSA substantially burdens
the Plaintiffs' exercise of religion. 42 U.S.C. 2000bb-1(a). It thus became the
government's burden to demonstrate that the burden furthers a compelling
governmental interest and is the least restrictive means of furthering that
interest. 42 U.S.C. 2000bb-1(b). The government had "the burdens of going
forward with the evidence and of persuasion." 42 U.S.C. 2000bb-2(3); United
States v. Hardman, 297 F.3d 1116, 1130 (10th Cir.2002). This circuit has not
decided on the appropriate standard of review for a "least restrictive means"
analysis by the district court. Id. However, we have made it clear that the
"ultimate determination as to whether the RFRA has been violated" is reviewed
de novo. United States v. Meyers, 95 F.3d 1475, 1482 (10th Cir.1996).

(4) Although RFRA is incorporated into the CSA and must inform treaty
obligations, we grant the government's motion in this case for two reasons.
First, the district court's conclusion that the 1971 UN Convention on
Psychotropic Substances does not extend to hoasca is in considerable tension
with the language of that Convention, particularly Article 1(f), defining
"preparation" and Article 3, 1 providing that "a preparation is subject to the
same measures of control as the psychotropic substances which it contains."
Hoasca is plainly a preparation containing DMT. As for the argument that
plants cannot constitute preparations, Article 32, 4 permits "reservations
concerning these plants" for magical or religious rites, thereby suggesting that
plants are covered, although a reservation concerning a plant (i.e., a substance
contained in a plant) is possible. We are unpersuaded that the Commentary or
contrary opinions on the meaning of the Convention are sufficient to override
the plausible interpretation of the Convention by the executive.

(5) Second, the district court's factual findings are in considerable tension with
(if not contrary to) the express findings in the CSA that "any material,
compound, mixture, or preparation which contains any quantity of" DMT, 21
U.S.C. 812 Schedule 1(c), "has a high potential for abuse[,]... has no currently
accepted medical use in treatment in the United States[,] ... [and][t]here is a
lack of accepted safety for use of the drug or other substance under medical
supervision." 21 U.S.C. 812(b)(1) (Schedule I required findings); see also 21
U.S.C. 801(2) (Congressional findings). The CSA prohibition on involvement
with controlled substances is extremely broad. See 21 U.S.C. 841(a)(1),
952(a); United States v. Oakland Cannabis Buyers' Co-op., 532 U.S. 483, 493,

121 S.Ct. 1711, 149 L.Ed.2d 722 (2001).


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(6) Courts have routinely rejected religious exemptions from laws regulating
controlled substances employing tests similar to that required by RFRA. See
United States v. Greene, 892 F.2d 453, 456-57 (6th Cir.1989); Olsen v. DEA,
878 F.2d 1458, 1461-62 (D.C.Cir.1989); Olsen v. Iowa, 808 F.2d 652, 653 (8th
Cir.1986); United States v. Rush, 738 F.2d 497, 512-13 (1st Cir.1984); United
States v. Middleton, 690 F.2d 820, 824 (11th Cir.1982); see also Employment
Div. v. Smith, 494 U.S. 872, 905, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990)
(O'Connor, J., concurring). Even after enactment of RFRA, religious
exemptions from or defenses to the CSA have not fared well. See United States
v. Brown, 72 F.3d 134, 1995 WL 732803 (8th Cir.1995); United States v.
Jefferson, 175 F.Supp.2d 1123, 1131 (N.D.Ind.2001). Moreover, as noted by
the government here, permission for sacramental use of peyote was granted by
Congress after enactment of RFRA, suggesting Congressional doubts that
RFRA was sufficient (alone) to grant an exemption. Gov't Reply Br. at 9 (citing
42 U.S.C. 1996a).

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(7) The government suffers irreparable injury when its criminal laws are
enjoined without adequately considering the unique legislative findings in this
field. See Motor Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 98
S.Ct. 359, 54 L.Ed.2d 439 (1977) (Rehnquist, J.) (granting stay) ("It also seems
to me that any time a State is enjoined by a court from effectuating statutes
enacted by representatives of its people, it suffers a form of irreparable
injury."). Although we do not minimize the imposition on the Plaintiffs' free
exercise of their religious beliefs, a stay will merely reinstate the status quo.
Concerning the public interest, we have Congressional findings in the CSA
regarding the dangers caused by controlled substances "to the health and
general welfare of the American people." 801(2). Moreover, the government
contends that an injunction requiring the federal government to violate an
international treaty could have serious consequences for efforts to obtain the
assistance of other nations in drug control; we are reluctant to second-guess the
executive regarding the conduct of international affairs. See INS v. Abudu, 485
U.S. 94, 110, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (INS decisions entitled to
special deference because INS officials "must exercise especially sensitive
political functions that implicate questions of foreign relations"). Furthermore,
free exercise case law pre-Employment Div. suggests that religious
accommodations requiring "burdensome and constant official supervision and
management" are especially disfavored. Olsen, 878 F.2d at 1462-63. As
indicated by the district court's thirty-six conditions in its preliminary
injunction, see, e.g., Gov't Emer. Motion, tab A at 4, 7 (requiring provision
of social security numbers if requested by the DEA of handlers of hoasca

outside of ceremonies); 13 (if DEA requests inspection and Plaintiffs believe


DEA inspection would violate association rights, Plaintiffs may withhold
inspection pending district court determination of whether the inspections are
lawful), extensive judicial and administrative oversight of the Plaintiffs'
handling and use of hoasca would likely be necessary in any arrangement that
permits Plaintiffs' religious use of hoasca while respecting the public interest in
preventing diversion of DMT and protecting the public health and safety.
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The government's emergency motion for a stay pending appeal is granted and
the district court's preliminary injunction is stayed pending further order of this
court.